Mistakes Regarding Traumatic Brain Injury

December 24, 2008by Steven Gursten

In yesterday’s blog, I warned Michigan traumatic brain injury lawyers of a Dec. 18, 2008 case that’s devastating for Michigan auto accident victims with TBI in federal courts. In Shropshire v. Laidlaw Transit, a young girl who suffered a traumatic brain injury from a car accident had her personal injury case dismissed. The U.S. Court of Appeals for the Sixth Circuit wrote that the “automatic” route to a jury trial for victims of traumatic brain injury found in MCL 500.3135(2)(a)(ii) does not apply in federal court.

The Court declared that the “automatic” route to a jury, created to protect victims of closed-head injury under Michigan’s car accident law, is procedural, not substantive. I fear this case will effectively wipe out many car accident traumatic brain injury cases in the federal courts. What is also troubling about the decision is the complete lack of medical understanding about traumatic brain injury. Sixth Circuit Judges Norris, Rogers and Kethledge made several mistakes about traumatic brain injury in dismissing Hannah Shropshire’s personal injury case.

Children Do Not Recover From TBI Better Than Adults

In Shropshire, young Hannah’s pre- and post-accident lifestyle was compared, based upon her age at the time of her automobile accident. Yet this presents only half the picture, as a brain injury is very different from a physical injury. Once doctors thought that because of brain “plasticity,” a developing brain in a young child would rebound better from TBI than an adult brain. This theory has been proven untrue. Because a child’s brain is undeveloped, it may take additional years to fully recognize all of the impairments he or she will confront as a result of traumatic brain injury.

In an excellent article published in the Journal of Recovery on children and traumatic brain injuries, Dr. R. Savage, who has specialized in pediatric traumatic brain injury for more than 30 years, refutes other misconceptions of children with brain injuries.

Savage writes that younger children do not recover better than adults and older children. Research shows that children may actually experience more long-term challenges. Measures commonly used to evaluate brain injury severity were developed for adults, not for children, and therefore, many very serious pediatric brain injuries can go undiagnosed for years.

The medical literature also shows that children do not lose consciousness as easily as adults. This becomes more relevant as we read how the Shropshire Court dismisses Hannah’s personal injury:

“The accident caused Hannah to hit her head against the van’s window…It is undisputed that Hannah’s mother did not seek medical treatment for her the day of the accident, and Hannah never showed any physical signs of an injury from the accident. Within a few days, however, Hannah began to experience headaches, and when, a week after the accident, she also developed a fever and began vomiting, her mother took her to see Dr. William Heath, her pediatrician. Dr. Heath found no physical evidence of an injury, but at the request of Livonia referred Hannah to a neurologist for a more complete examination. The examining neurologist, Marianne E. Majkowski, D.O., came to the same conclusion as Dr. Heath, finding no physical evidence of a head injury. Over the next five years, Hannah would visit with Dr. Majkowski and Dr. Heath numerous times, in addition to seeing three other doctors and a neuropsychologist, with the net result of one electroencephalogram (known better as an “EEG”) indicating some abnormality in Hannah’s brain.”

Physical Recovery from TBI Doesn’t Mean Child is Better

This leads to another major misconception about pediatric traumatic brain injury — that physical recovery is a sign a child has recovered. The truth is, motor function is not a direct indicator of cognitive or behavioral recovery. Regular physical examinations, such as normal intelligence scores after traumatic brain injury, do not mean a child will not have problems in school.

Intelligence tests often are unreliable measures of a child’s learning ability after TBI. Most intelligence tests measure prior learning, and do nothing to document the future problems a young child with a brain injury will face in the future.

Research by Dr. Savage and others clearly demonstrates the traumatic effect of a child’s brain injury. Not only does the pediatric brain as a whole mature at different times and ages, but a child’s different brain lobes also mature differently and at different periods of time. Again, this universally accepted understanding of pediatric traumatic brain injury is entirely absent in the Shropshire decision dismissing young Hannah’s case.

Because the Michigan Legislature created special protections for victims of automobile accidents who suffer TBI and the panel of Sixth Circuit judges cast them aside in Shropshire, the onus and burden now lies with Michigan accident lawyers. We must create a more comprehensive record that may offer more protection for brain injured clients in the federal court system.

Of course, I write “may” because a federal court judge applying only the Kreiner v. Fischer factors to determine impairment may still dismiss any brain injured child’s case because it is so difficult to show a serious impairment for a child at this young age.

— Steve Gursten is a member of the American Association for Justice Traumatic Brain Injury Group and has lectured to lawyers accross the United States on helping victims of traumatic brain injury from motor vehicle accidents.

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